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Pentagon Memo Undermines the U.S. Constitution
Pentagon Show Memos Rumsfeld OK'd Interrogation Methods
http://www.truthout.org/docs_04/062304B.shtml
Pentagon Memo Undermines US Constitution
http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=5&article_id=5498
Pentagon Memo Undermines the U.S. Constitution
By Alia Malek
The Toronto Daily Star Tuesday, June 22, 2004
The telltale signs are there: the disregard and dismantling of
international law; the evisceration of the US Constitution; the erosion of any
goodwill toward America internationally, but especially in the Arab world; the
bickering between the White House, the Pentagon and the Justice Department on
the one hand, and the State Department on the other; the shortsighted vision of
national security; the endangering of the lives of American soldiers on the
front lines by hawks who have never seen combat; the legitimization of methods
made notorious by dictators; the boundless arrogance. This is the bottom
line of how the Bush administration is prosecuting its "war on terrorism," and
recent revelations suggest things may be even worse: Lawyers at the Justice and
Defense Departments have been drafting memos since at least 2002 exploring
how international and domestic prohibitions against torture could be
circumvented. This comes on top of other memos from the White House Counsel's office
asserting that the Bush administration could ignore the Geneva Conventions in
Afghanistan and Guant·namo Bay with regard to treatment of alleged members of the
Taleban and Al-Qaeda who had been captured. Such measures reflect a more
general attitude adopted by the administration since Sept. 11, 2001, embodied
in the USA Patriot Act, the treatment of prisoners at Guant·namo, secret
detentions and American behavior in Iraq. They also provide a backdrop to the
scandal at Abu Ghraib and the lawsuits being filed against the contractors running
interrogation operations there. In light of this, the memos raise the prospect
that what happened at the prison was not about bad apples in the system, but
about the way the system itself operated, the foundations for which were laid
down by Justice and the Pentagon. So what is in the memos? The only one
that has so far been made public is a draft report by a Pentagon-appointed
working group, which is reportedly similar to a final report that Secretary of
Defense Donald Rumsfeld has made classified and which draws heavily on another one
authored by the Office of Legal Counsel at the Justice Department. The
lengthy draft report outlines the relevant international and domestic laws
forbidding torture and deconstructing legal issues regarding interrogations and
imprisonment, such as definitions of pain, punishment and suffering. It depends on
often-untested legal technicalities or vague national-security considerations
to argue that the restrictions on torture are inapplicable in the war on
terrorism. In the event that civilian or military personnel might be accused of
torture, it also considers possible defenses. The major thrust of the memo is
that the president's power to wage war is virtually unchecked, and that neither
the judicial nor the legislative branches of government, let alone
international law, can interfere. What makes this memo disturbing is how it uses law
and legal reasoning in a dishonest fashion to undermine core principles of the
American legal and political systems. This includes the Eighth Amendment's
ban on cruel and unusual punishment, the Fifth Amendment's protection of due
process, and the system of checks and balances built into the constitution to
prevent any one branch of government from becoming dominant. These values
have been part of the US since its inception. Moreover, they are the basis for
other US statutes such as the federal anti-torture statue enacted in 1994, which
provides for the prosecution of an American national or anyone present in the
US who, while outside the country, commits or attempts to commit torture. A
person found guilty under the act can even receive the death penalty if the
violence results in a victim's death. By extending the jurisdiction of the
prohibition on torture in such a way, but also by ratifying major international
treaties forbidding torture under any circumstance and by regularly issuing
statements against torture, the US has shown a commitment to the value that
torture is absolutely forbidden and prosecutable. The Pentagon memo argues, in
essence, that there are loopholes in this ban and, therefore, loopholes in
American values. The memo does this by stretching definitions of pain and
suffering, for example, and by making faulty arguments, such as asserting that
certain constitutional protections do not apply because when they were affirmed in
the jurisprudence (especially that of the Supreme Court), they were not
applied, for example, to "enemy alien belligerents." However, this is absurd and
emphasizes the procedural over the substantive. Of course the right of enemy
alien belligerents has not been established in American law, since it is the Bush
administration that coined that questionable term. And while, yes, the right
of such belligerents has not been specifically established, that of the
illegality of torture has. But even this is debatable according to this Pentagon
memo. For example, the document asserts that the only persons who can benefit
from Eighth Amendment protections are those who have already been convicted,
because "cruel and unusual" refers to the punishment received after conviction.
Therefore, according to the memo, cruel and unusual behavior has to be
inflicted as punishment (not for example as an interrogation technique) to involve
the Eighth Amendment. A US founding father just kicked over a tombstone rolling
in his grave. The memo also considers whether torture is an acceptable
interrogation method because of necessity; particularly in the case of a
"ticking time bomb" scenario, where a captured individual might possesses information
that could defuse a plot to kill many. This is, of course, the most
emotionally persuasive argument and indeed the one resonating most with Americans,
including myself. But, the fact remains that those held in custody both in
Iraq and at Guant·namo Bay have been held there for months, if not years. They,
arguably, no longer possess information on imminent threats. Moreover, parts of
the Pentagon memo apparently written by less ideological military attorneys
quote military field manuals that assert "experience revealed that the use of
force was unnecessary to gain cooperation and was a poor interrogation
technique, given that its use produced unreliable information, damaged future
interrogations and induced those being interrogated to offer information viewed as
expected in order to prevent the use of force." With threats not obviously
imminent and the effectiveness of torture dismissed by those in the field, and
given that international laws on torture hold that there is no acceptable
circumstance for its use, there are, at the least, questionable grounds on which to
make an argument in favor of the necessity of torture. The US legal
system is not without its flaws, but it has survived and evolved because it is
rooted in ideals embodied in the constitution, which has been gradually amended to
reign in the excesses of the US government and people. The executive branch,
as the branch responsible for enforcing American laws, should protect the
document, not render it meaningless through grotesque dissections. If the
United States can indulge in an a-la-carte approach to human rights protections,
what can we expect from the rest of the world? Alia Malek is a human rights
attorney and served in the US Justice Department's Civil Rights Division. http://www.newsday.com/news/nationworld/nation/ny-usabus0623,0,6959752.story">Go
to Original Pentagon to Show Memos
Rumsfeld OK'd Interrogation Methods
By Craig Gordon
Newsday Tuesday 22 June 2004 The Pentagon plans to release
declassified memos as early as today showing that Defense Secretary Donald Rumsfeld
approved harsh interrogation techniques at the military prison at Guant·namo
Bay, including forcing detainees to stand for as long as four hours straight, a
senior defense official said last night. Critics of the Bush
administration say the use of uncomfortable "stress positions" and other techniques amount
to torture. The defense officials denied a CNN report that Rumsfeld also
approved a technique known as water-boarding, in which a prisoner is held
under water until he believes he might drown. CNN reported that the technique was
approved in October 2002 but that the order was later rescinded before it was
used, after complaints from Pentagon lawyers. Also yesterday, a scheduled
pretrial hearing today for Pfc. Lynndie England, accused of mistreating Iraqi
prisoners seen in several of the Abu Ghraib prison photos, was postponed amid
reports that her lawyers are discussing a possible plea bargain. The hearing
was rescheduled for next month. In Baghdad, meanwhile, lawyers for two U.S.
military defendants in the Abu Ghraib scandal won the right to question top
U.S. generals to bolster arguments their clients were following lawful orders
in their treatment of inmates. The order, issued by Col. James Pohl, a
military judge, at pretrial hearings compels Lt. Gen. Ricardo Sanchez, the top
U.S. commander in Iraq, and Gen. John Abizaid, chief of the U.S. Central Command,
to give depositions. The defense also will have access to Maj. Gen. Geoffrey
Miller, who was in charge of the Guant·namo Bay prison camp and now runs U.S.
detention facilities in Iraq. Questioning senior officers who run the Iraq
war could shed light on interrogation techniques and help determine how far
responsibility for the abuse extends up the chain of command. However, Pohl
rejected motions by counsel for Sgt. Javal Davis and Spc. Charles Graner to
compel testimony from Rumsfeld.
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